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Request to a telephone operating company in criminal proceedings against a natural person and imposition of a procedural fine

Judgment I. ÚS 1670/22

The First Panel of the Constitutional Court (Justice Rapporteur Vladimír Sládeček) upheld the constitutional complaint and annulled the resolution of the Police of the Czech Republic, Regional Directorate of the Liberec Region, Criminal Police and Investigation Service, General Crime Department, of 1 April 2022, ref. No KRPL-98362-773/TČ-2021-180070-JT and the Order of the Regional Court in Ústí nad Labem, Liberec Branch, of 20 April 2022, ref. No 31 Nt 1505/2022-44, because they violated the complainant’s right to protection of property guaranteed by Article 11(1) of the Charter of Fundamental Rights and Freedoms and Article 1 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms.

The police authority imposed a fine of CZK 50 000 on the complainant in accordance with Section 36(2) of Act No 418/2011, on criminal liability of legal persons and proceedings against them, for failure to comply with its request to provide information to obtain a duplicate SIM card for the victim L.N. or to hand over the duplicate SIM card. The complainant commented on this request by stating that if such request were to be granted, it would be contrary to its obligations arising in particular from Section 89 of Act No 127/2005, on electronic communications. The judge of the District Court in Česká Lípa then ordered the complainant, in accordance with Section 8(5) of the Criminal Procedure Code, to issue and provide the police with a duplicate SIM card for the telephone number the victim had used in the past. The police authority subsequently, referring to the order of the judge, repeatedly asked the complainant to comply and the complainant repeatedly refused. The contested order of the police authority thus imposed a procedural fine on the complainant, whose complaint was dismissed by the Regional Court in the contested order.

In particular, the complainant argued that it was not entitled to comply with the police authority’s request. The procedural fine was thus imposed unjustifiably. Moreover, it was incorrectly imposed pursuant to Section 36(2) of the Act on Criminal Liability of Legal Persons and not pursuant to Section 66(1) of the Criminal Procedure Code, which, as stated therein, applies to both natural and legal persons.

The Constitutional Court partially upheld the complaint by annulling the decision on the procedural fine. However, it considered the request of the police authority towards the telephone operating company to be lawful. Therefore, the complainant should have complied with the request and provided a duplicate SIM card for the phone number used by the victim in the past.

In this context, the Constitutional Court considered the key purpose for which the police authority had asked the complainant to produce and provide a duplicate SIM card to the victim. This is because the goal of the police was to identify and secure accounts the victim may have had in cyberspace. First and foremost, it was the victim’s Google account. 

However, if the police authority, in the context of criminal proceedings against a natural person, imposed a fine on the complainant (as a legal person) pursuant to Section 36(2) of the Act on Criminal Liability of Legal Persons and not pursuant to Section 66 of the Criminal Procedure Code, this infringed the complainant’s right to protection of property guaranteed by Article 11(1) of the Charter and Article 1 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms. A fine under the Act on Criminal Liability of Legal Persons can only be imposed in the context of criminal proceedings against legal persons. Therefore, the Constitutional Court annulled both decisions.